Infertility Treatments Come Under Fire at the Arizona Legislature

Physicians say that two new bills pushed by a conservative Christian group could have serious implications for Arizona fertility patients.

Last month, committees in both the Arizona House and Senate heard testimony on bills that would virtually wipe out egg donation as a fertility treatment in Arizona.

There was not testimony from a single person who'd been harmed by the procedure, which involves a fertile young woman "donating" her eggs to an infertile woman.

There was no evidence from watchdog groups that the procedure is being used incorrectly.

There wasn't even a single whistleblower.

There was, however, the Center for Arizona Policy, or CAP. The conservative Christian nonprofit is arguably the most influential lobbying group at the Legislature these days. And CAP didn't just support the bills in question. It also wrote them.

With Janet Napolitano now in Washington, trying to somehow secure our homeland, Republicans control the state House, the Senate, and the governorship. Thanks to that, CAP is on a roll.

And so while Arizonans fret about the economy or grouse about shuttered highway rest stops, the Legislature fiddles to CAP's tune. Want to divorce your spouse? CAP thinks you should have to wait six months to finalize it, and the Legislature does, too. Want to adopt a needy child? You'd better be married, CAP says, and the Legislature agrees.

But CAP's foray into the world of fertility treatment is a bold one. Last week, I spoke with four local physicians who specialize in fertility issues. They all agreed that CAP's bills could have horrendous consequences for the families they treat — and future research in their field. And even if taking down the fertility industry is a goal of CAP's leadership, I have a hard time believing that it's one universally shared by the group's supporters. (Conservative Christians, surely, have just as much trouble conceiving as any other demographic.)

The bills that were originally introduced this year — and that sailed through initial committee hearings — would have foisted intense new regulation, and possible criminal charges, on fertility specialists.

They would have barred clinics from advertising for egg donors. They would have also stopped clinics from reimbursing young women for anything other than "direct" costs associated with their donation — a measure that passed in the United Kingdom and almost immediately created a three-year wait for someone in need of eggs. They would have also required potential donors to be told that the risks of egg donation are "highly unstudied and unknown compared to other medical procedures" — a statement that is simply not true, according to the nonprofit group that represents fertility specialists, the American Society for Reproductive Medicine.

And there's more. A companion bill, introduced simultaneously in both the House and Senate, would make it a felony for a physician to "intentionally or knowingly engage in an activity for non-therapeutic research" that injures or destroys a human embryo.

Now, "non-therapeutic research" doesn't mean anything to the doctors I consulted, but according to the actual language in the bill, it would cover any research "not intended to preserve the life or health" of an embryo. One fertility specialist I spoke to, Dr. Fred Larsen of Chandler, believes that means physicians could be prosecuted if they examined an embryo to check for conditions such as Down syndrome or cystic fibrosis.

Thanks in part to pressure from physicians and a support group for their patients, CAP has amended both bills. But the physicians I spoke with say that, even as amended, the bills are still extremely troubling.

The first bill would still require doctors to make certain disclosures to egg donors that physicians say are unnecessary. And the second bill still makes it a crime to "injure or destroy" an embryo during research. The Senate approved both bills last week; they're now waiting for a final vote in the House.

Even with the amendments, the American Society for Reproductive Medicine is flatly opposed to both bills. So is RESOLVE, the national infertility advocacy group.

And the physicians I spoke to are angry. They believe their industry is being targeted not because of any real problems, but because CAP wants to establish embryos as "persons" — part of a back-door attempt to get around Roe v. Wade.

"These bills are a solution in search of a problem," says Sean Tipton, spokesman for the American Society of Reproductive Medicine. "There's no evidence that [the procedures being affected] are dangerous. There's no data to support their argument that patients aren't being properly protected.

"This is really part of a national trend of people who want to drag abortion politics into fertility issues."

And in Arizona, at least, they're doing it without even talking to the very people who will be most affected: the families who struggle with fertility and the doctors who've devoted to their careers to helping them.

I was initially skeptical about this story, mainly because of my position on abortion. My friends are generally horrified when I admit this, but I do not believe abortion should be legal, other than in cases of rape, incest, or truly life-threatening health risks.

I'm not sure I would have felt this way back in 1940. But today, because birth control is so easy to come by and so many couples are so eager to adopt infants, I have a hard time seeing abortion as anything other than the rankest form of selfishness. (You can send your hate mail to my editor. Trust me, she's on your side on this one.)

Modern science, too, has been revealing. We now know that even if life doesn't technically begin at the moment of conception, it begins soon thereafter. We can see the fetus inside the womb; we can't pretend it isn't a baby. And really, with preemies now surviving after just a few months' gestation, it's hard to argue that we should be allowed to kill an already developing six-week-old fetus, much less a six-month-old one.

But even a fervent pro-lifer like myself gets confused when dealing with the topic of embryos. Many of my friends, and even a family member, were able to have children only because a physician harvested their eggs and fertilized them in the proverbial Petri dish, and then implanted them back into their bodies. These are people desperate to have a family, not people trying to avoid the responsibilities therein.

But the advances that have allowed them to conceive have led to some tough ethical questions.

Is that fertilized clump of cells a person? Is it a person while in a Petri dish, or only when inside a womb? Does it have rights?

In the continually evolving world of fertility treatments, nothing is simple. "You talk about the moment of conception," says Dr. Randall Craig, a Valley infertility specialist, "but with in vitro fertilization, there are numerous gradations instead of one moment. There are a dozen steps — and only after you've done the first two or three do you have a viable embryo."

Currently, the law allows women to destroy unused embryos, donate them to another woman, donate them to research, or freeze them. One study I read about found that many women were so torn by their options (and their conflicted feelings about "their" embryos) that they opted to do nothing. There's apparently medical storage units filled with freezer after freezer, all packed with tiny fertilized embryos; what happens to them in cases of death or divorce is becoming increasingly problematic.

These are very, very complicated issues. But the more I've examined what's happening here in Arizona, the more I'm convinced that we're taking a very complex problem and trying to shoehorn it into a simple fight about abortion. (I say "simple" not because abortion is an easy issue, but because most of us already have an entrenched position on the subject; it doesn't require us to do any soul searching because we already know exactly what we believe.)

As it turns out, CAP's efforts on this front are part of a loosely organized national movement. A similar bill has been introduced in Georgia; a bill that would bar compensation for egg donors just made it through the Oklahoma Senate. An annual report for one of the nonprofit agencies working with CAP in Arizona actually boasts of using embryos as a "wedge" issue. The organization's strength, its founder writes, "has been to shift the debate, create a wedge, and reframe the discussion to discuss the need for human eggs" — thereby compelling couples to donate them rather than destroy them.

I feel queasy any time someone boasts abut "shifting the debate." And sure enough, what happened in this month at the Arizona Legislature has been both sloppy and intellectually dishonest.

Indeed, in just a few weeks' time, with very little public debate, the Legislature may well make it illegal to harm an embryo during research, even as it'll remain perfectly legal for woman to destroy them. Tell me how that makes sense.

Let's face it: The ethical implications of these issues are vast and confusing. To make matters worse, they're constantly shifting; like it or not, it's a brave new world, and procedures that would have been inconceivable to my grandmother have now directly led to the conception of her great-grandchildren.

Unlike some physicians I spoke to with, I don't have a problem with the Legislature addressing some of these issues. This is important stuff. We should be talking about it.

But I have a huge problem with the way the Legislature has chosen to deal with it in this case.

If our representatives were really serious about grappling with this topic, they'd have summoned the experts. We would have heard long, serious testimony from people in the bioethics field. We'd have heard physicians testify, in detail, about the regulation that's already on the table from the federal government (which is enormous) and the potential moral quandaries they find themselves facing. We would have heard from women who've donated their eggs. We would have heard from the couples who benefited from their donations.

We didn't hear any of that.

We instead heard brief testimony from a few out-of-state hired guns loosely affiliated with CAP. And we heard limited testimony from just two physicians who were in opposition — even though more physicians were present at the House committee hearing, Representative Nancy Barto declined to let them all speak.

And we almost didn't even get to hear from the two physicians in question. Nate Zoneraich, a fertility specialist with offices in Tempe and Scottsdale, has been one of the loudest voices opposing the bills. He tells me that he heard about them only by a fluke: An OB/GYN he knows professionally just happens to be married to State Representative Eric Meyer, a Phoenix Democrat. Meyer, who is himself a physician, let his wife know about the bill, and she called Zoneraich.

When Zoneraich called the national group that works with physicians in his field, the Society for Assisted Reproductive Technology, it had no idea the bills even existed. And, yes, it told him, he should be very, concerned.

Zoneraich had learned about the bills just days before their first committee hearings, which is the only time public comment is allowed. He managed to pull together a group of colleagues to testify — but when they got to the Capitol, they learned that the Senate and the House were hearing the same bills in committee at the very same time. (That's practically unheard of, Capitol watchers tell me.) The physicians were forced to choose which committee to attend.

Even more galling: Representative Barto, who was running the House committee hearing, actually juggled the order in which bills were heard to give CAP's out-of-state expert time to get done testifying at the Senate and sprint over to the House. The physicians were given no such preference.

When it came time to vote, Zoneraich recalls, the Republican state representatives all provided lengthy explanations of the problems they had with the bill — yet ultimately, they all voted for it.

"We're hearing these explanations, and we're thinking they're actually going to vote no," he recalls. "They're making arguments why the bill shouldn't go through, and yet they were all voting yes!"

Indeed, the amended bills sailed through the Senate and appear likely to pass in the House. The physicians believe their only hope may be a veto from Governor Jan Brewer. They've been trying to put the pressure on, as is RESOLVE and its network of parents. They point out that one of the bills would add duplicative regulation to the egg-donation process. (The FDA already requires that certain disclosures be made to egg donors. And unlike the state of Arizona, they actually have the mechanism to see that the rules are being followed.) They also note that the second bill will likely wipe out any form of research using embryos in Arizona — including, perhaps, the ability of local physicians to stay up to date with training and new techniques.

The pressure is being felt. Senator Linda Gray, the Phoenix Republican who served as a primary sponsor of both Senate bills, admits that she was somewhat blind-sided by all the criticism the bill has received.

Incredibly, Gray actually confirmed to me last week what the doctors have long assumed: She didn't read the bills before signing on as their primary sponsor.

"I don't think CAP realized the extent that the bill was going to," she tells me. "We were introducing bills there that last week as fast we could. I had not read them completely through." Once she started hearing concerns, she says, "we began looking at that, and calling CAP. I told them, 'I want this out,' and they worked with me."

Gray insisted that she never intended to upset fertility specialists or their patients. Three decades ago, she says, she herself was a member of RESOLVE, the chief support/advocacy group for women dealing with infertility. Her only grandchild is the happy result of in vitro fertilization.

"I know the pain these families go through," she says. She stresses that the amendments in place will allow clinics to advertise for egg donors and will allow payment beyond "direct" expenses. They'll also be stripping the possible felony punishment for doctors, although the ban on harming an embryo through research will remain.

She notes, truthfully, that one local infertility specialist, Drew Moffitt, is now in favor of the bill. "We worked with infertility clinics," she says.

But that's cold comfort to the other clinics in town; they appear to be uniformly opposed. Tipton, of the American Society of Reproductive Medicine, says they are "bad bills." And Larsen, the Chandler-based based infertility specialist, tells me that they will have a big impact.

"I don't think they fully considered the implications of what they were doing," he says. "Do they want to make it harder for women to get in vitro fertilization treatment? Because that's what you're going to get."

And the physicians say it's all the more appalling that this could well happen so quickly, with so little discussion.

"To me, it just saddens me that they'd push something like this through with no debate," Larsen says. "If you want to ban embryo research in Arizona, at least have an open hearing on it."

Zoneraich agrees.

"This has been a crash course in politics," he says. "It's been unbelievable."